Central Administrative Tribunal - Bangalore
V Rajamanickam vs M/O Defence on 28 August, 2017
OA.No.170/00229/2017/CAT/Bangalore Bench CENTRAL ADMINISTRATIVE TRIBUNAL BANGALORE BENCH ORIGINAL APPLICATION NO.170/00229/2017 DATED THIS THEZ8 IhDAY OF AUGUST. 2017 ' HON'BLE JUSTICE SHRI HARUN UL RASHID, MEMBER (J) HON'BLE SHRI PRASANNA KUMAR PRADHAN, MEMBER (A) V.Rajamanickam S/o K.Varatharaju Aged 50 years JSO, O/o RDAQA, DGAQA Posted to work at ORDAQA(LCA-TD) Bangalore-560 017. Residing at 1D 9/4, DRDO Township CV Raman Nagar Bangalore-560 093, 00 Applicant (By Advocate Sri B.Veerabhadra) Vs. . The Directorate General of Aeronautical Quality Assurance Ministry of Defence . H Block, New Delhi-110 071, i 2. The Secretary Defence Production Ministry of Defence South Block, Néw Delhi-110 011. . The Additional Director General(SZ) DGAQA, Ministry of Defence Vimanapura Post , Bangalore-17. .... Respondents (By Advocate Sri. M.Vasudeva Rao, Sr.CGSC) ORDER
(PER HON'BLE SHRI PRASANNA KUMAR PRADHAN, MEMBER (ADMN) The applicant has filed the present OA seeking the following relief:
"Quash and set aside the provisions of para 6 of policy on deployment of Group A and Group B officers in DGAQA organization circulated under letter. No.3598/DGAQA/Adm-1.-at.31/10/2016. (Annexure A6), which inter alia stipulates that the station tenure as per para 3 for the purpose of posting/transfer will be the period spent by an officer continuously at that Station in the present as well as the lowest grade post covered under the RTP, if any, and the posting end transfer effected vide F.No.3592/RTP/Gp OA.No.170/00229/2017/CAT/Bangalore Bench B/17-18/DGAQA/Admn-| dated 07/04/2017 (Annexure AQ) issued by a office of the First Respondent, so far it relates to the applicant as arbitrary discriminatory and violative of provisions as specified in the OA.
2. According to the applicant, he was selected and appointed in the respondents' organisation in May 1989 and upon selection as SSA wef. 26.4.1995, he was appointed and posted at Bangalore. He was transferred to Trichy in 2002 and then to Hyderabad in 2006. Based upon his own request, he was transferred to Bangalore vide order dated 27.4.2009(Annexure-A2). He submits that his transfer to Bangalore was on compassionate ground to u enable him to look after his ailing parents.
3. The applicant submits that 1% respondent issued a policy dated 5.10.2010 with regard to transfer(Annexure-A3) followed by a draft policy on posting/transfer of officers of Defence Aeronautical Quality Assurance Service(DAQAS) and other scientific & technical officers of DGAQA dated 23.11.2015. Thereafter, the 1%' respondent issued a letter dated 10.5.2016 with regard 'to. the rotational transfer based on the policy dated 5.10.2010(Annexure-A5). He forwarded further communication dated 31.10.2016(Annexure-A6) relating to policy on deployment of Group 'A' and Group 'B' officers in DGAQA organisation. Vide Annexure-A8 order dated 16.12.2016, a list of Group 'B' officers who were due for rotational posting/transfer was circulated which included the applicant. Thereafter, vide order dated 7.4.2017, the applicant has been transferred to Hyderabad.
Aggrieved by the said transfer order, he has filed the present OA.
4. The applicant submits that the said transfer order so far as the applicant is concerned is liable to be quashed as it is opposed to the rules in force and the policy in vogue. The applicant joined at Bangalore only on 2.5,.2009 and has not completed 7 years when the transfer order was issued. Rule 6 of transfer policy which provides for definition of station and station tenure does % OA.No.170/00229/2017/CAT/Bangalore Bench not seem to be fair as it intends to cover the period spent by an officer continuously at that station in the present as well as the lower grade posts. Rule 10 of the policy stipulates the exemption from RTP. Rule 13 empowers the authorities to relax any of the provisions or contingencies. The policy | indicates the list of stations furnished in the Annexure and perusal of which could indicate that station New Delhi and Ghaziabad which is located within i the distance of 30 Kms as different station. Likewise, Lucknow and Kanpur are located within the distance of 70 Kms and it is being treated as different stations. lf the distance is the criteria then ORDAQA, Bangalore is around 25 Kms from ALISDA, Bangalore. Thus the applicant is treated differently when compared to others. There is no transparency in the said rules and the transfer will be affected according to whims and fancies of the respondents. More over the applicant is not holding any sensitive post. Therefore, the transfer of the applicant is not fair. He also pointed out that two to three persons have been retained which indicates that all the employees have not been treated fairly. Therefore, he prays for granting the relief as sought for.
. The respondents have filed a reply statement in which they submitted that the posting of the applicant has been done in accordance with the transfer policy of the respondents. It is not an individual transfer order but number of transfer and posting orders of officers have been carried out in the said order. Some similarly situated persons had approached the Principal Bench of the Tribunal in OA.No.1339/2017 to challenge the transfer. policy and the OAs were dismissed by the Principal Bench of the Tribunal! with the cost of Rs.10,000/-. According to the respondents, the applicant has completed the normal tenure of 5-7 years prescribed in the transfer policy. for the present station and was thus due for transfer. He was also given a choice for preferential posting and the applicant availed. the opportunity. His transfer has been made to one of his preferred stations i.e. Hyderabad.
OA.No.170/00229/2017/CAT/Bangalore Bench
6. The respondents submit that the applicant holds the post of Junior Scientific Officer(Group 'B' Gazetted) and have All India Service liability. As per the rotational transfer policy, the prescribed tenure at normal station is 5-7 years. Only the persons retiring from service within a period of 2 years or are likely to be promoted within 1 year can be temporarily exempted from the RTP for being transferred along with promotion. If they have completed the prescribed ' tenure at the existing station, the request of an officer for retention at a station maximum by 1 year may be considered on ground of education of his/her children once in entire service career. The request from employees for posting on compassionate grounds may also be considered as per para 7(d) of the policy. Such request can be exercised only once in full service tenure.
7. The respondents submit that the Group 'B' officers due for rotational transfer along with their preference of stations for posting and request for compassionate postings, exemption from RTP in year 2017-18 were placed before the committee constituted in terms of para 2 of the policy dated 31.10.2016. After examining preferences of stations and other requests received from the Officers and keeping in view the service exigencies at different Field Establishments, suitability of an officer for a particular project etc., the Committee made recommendations for posting/transfer of these officers. The order of posting/transfers were accordingly issued on the basis of recommendations of the Committee with due approval of the competent authority. The applicant has completed the regular tenure of 5-7 years prescribed for the present station and was due for transfer. He had aiso given a choice for preferential posting which has been considered.
8. The respondents referred to various orders of the Hon'ble Apex Court saying that the Courts should not interfere with the transfer orders which is made in public interest or administrative reasons unless the transfer orders as made in OA.No.170/00229/2017/CAT/Bangalore Bench violation of any mandatory statutory rule or on the ground of mala fide. tn this case, the transfer order has been issued strictly in terms of transfer policy and hence there is no reason for any interference. In regard to: the two cases mentioned by the applicant in the OA they submit that Sri Depak Kumar Das, JSO has not completed maximum tenure of 7 years and his retention is within the transfer policy, The other JSO Sri Nagappa Yelubenchi is in the zone of ' the promotion and hence was not transferred. Therefore, they submit that there is no merit in the contentions made by the applicant.
The applicant has filed rejoinder in which he has practically reiterated the points made in the OA. The respondents have also filed additional reply to the rejoinder reiterating the submissions made in the main reply statement.
10. Earlier, an interim order was granted by this Tribunal staying the operation of
11. the transfer order so far as the applicant is concerned. The respondents have filed an MA seeking vacation of interim order to which objection has been filed by the applicant. Since the matter has been taken up for final disposal, the MA for vacating stay is no longer relevant.
Heard the Learned Counsel for the parties. The Learned Counsel for the applicant while reiterating different aspects mentioned in the OA submitted that.as per the policy, a specific committee has to consider the rotational transfer postings. However, there is no document to prove that such a committee has considered the rotational transfer postings. He further referred to transfer policy and submits that Rule 6 provides the definition of station and station tenure does not seem to be justified, According to policy, the period spent by an officer continuously at that station in the present as well as the lower grade post covered under RTP, if any which is not appropriate. It should refer to the current tenure only and not include the earlier tenure. He also referred to para-10 of the said policy which exempts certain category officers OA.No.170/00229/2017/CAT/Bangalore Bench from transfer on rotational basis. Para-10(iii) indicates that the tenure based RTP shall not be applicable to Group 'B' officers/staff of cadres other than Scientific and Technical cadres. This, according to him, is unjustified and there should not be any differential treatment. He further mentioned that there is no transparency in the transfer policy. The ground of retention of some officers has not been specified by the respondents in the order. The Learned ' Counsel also referred to the need of the applicant to take care of his ailing parents for which he was earlier transferred to Bangalore on compassionate grounds. On a query made to him, he mentioned that the applicant has a brother and sister also. The Counsel submits that the transfer policy should be applied uniformly to all officials. But the respondents have applied the same to some persons only and not all. Some persons have been exempted as being under promotional zone though no DPC has been held so far. When others have been retained, the applicant has been transferred. Therefore, it is the clear case of discrimination.
12.The Learned Counsel for the respondents referred to various aspects highlighted in the reply statement and submitted that rotational transfer was taken up by the Committee constituted for that purpose as specified in their reply and the contention of the Learned Counsel for the applicant is wrong. Further the applicant's preferential posting to Hyderabad has also been considered and he was posted to Hyderabad. The model transfer policy has been formulated by the respondents keeping in view the interest of all employees and there is nothing wrong or discrimination in the policy which include various provisions which will be applicable to all employees. Hence, the contention made by the applicant regarding transfer policy itself does not stand to any reason. He also refers to the order of the Principal Bench dismissing the OA against the transfer policy imposing cost to the applicant.
He also submitted several judgments of Hon'ble Supreme Court viz., OA.No.170/00229/2017/CAT/Bangalore Bench 5 Rajendra Singh & Ors. v. State of Uttar Pradesh & Ors [(2010) 1 SCC (L&S) 503], Union of India & Ors v. S.L.Abbas [1993 INDLAW SC 1106], Shilpi Bose(Mrs) & Ors. v. State of Bihar & Ors [ (1991) 17 ATC 935] etc. and submits that it is prerogative of the authority to effect transfer in terms of the laid down policy. He further mentioned that the applicant is in Group-B service and has All India Service liability. Therefore, he cannot demand for retention ; at the same place. The entire transfer has been carried out in terms of transfer policy and there is nothing to indicate the transfer is discriminatory. : The persons who are in the zone of consideration and are likely to be promoted have been retained so that they can be transferred subsequently on. | their promotional posts. Therefore, he submits that there is no ground of any interference in the said transfer order.
13.We have carefully considered the facts of the case and submission made by : either side. The applicant in the present OA has challenged para-6 of the transfer policy and also his own transfer order. As regards the transfer policy is concerned, we note that the respondents brought out a draft transfer policy in 2010 and the final transfer policy has been circulated by communication dtd.31.10.2016. We have gone through the policy and note that the said policy touched upon all aspects viz., sensitive posting, definition of station and station tenure and posting & promotion and preference for posting etc, This is a comprehensive policy and is applicable to both Group-A and Group-B officers in the organisation. It also provided the constitution of committees to consider posting/transfer of officers of DGAQA officers as well as other officers. Para-6 of the transfer policy which has been agitated by the applicant reads as follows:
6. Definition of Station and Station Tenure: The list of stations where DGAQA Filed Estts/Units are located is at Annexure. The station tenure as per Para 3 for the purpose of posting/transfer will be the period spent by an officer continuously at that station in the present as well as the lower grade posts OA.No.170/00229/2017/CAT/Bangalore Bench covered under the RTP, if any. The transfer from one Field Estt/Unit to another _ at the same station will be considered as a single tenure for that station.
Any transfer before completing the minimum tenure and stay beyond the maximum tenure shall be with the approval of the authority empowered to approve posting/transfer, based on the recommendations of the Committee.
14.As per the above provision, the entire period spend by an officer in the station shall be counted as station tenure. This appears to us as logical, Otherwise a :
person continuing at the same place for a very long time can be promoted to a promotional post and claim that in that particular rank he has not completed prescribed tenure. The definition of station and station tenure as defined in the policy appears to us as justified. We are therefore of the view that there is no merit in the contention made by the applicant against this provision.
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15. The Learned Counsel for the applicant had also referred to para-10(iii) of the 'policy which reads as follows:
10(iii) The tenure-based RTP shall not be applicable to Group 'B' officers/staff of cadres other than Scientific and Technical cadres ie. RTP in Group 'B is applicable only for officers holding the post of Junior Scientific Officer, Foreman, Senior Scientific Assistant, Scientific Assistant and Chargeman.
16.As per this provision, the tenure based RTP will be applicable only for the officer holding the post to some categories including Junior Scientific Officer. It will not be applicable to Group-B officers other than Scientific and Technical 'cadre which means officers in those cadres can be transferred before the mentioned 'tenure. This provision only protects the scientific officers like the applicant and hence there is no ground for any grievance in this regard, The applicant had also referred to the list of stations furnished in the annexure and stated that when stations in New Delhi and Ghaziabad which are located within the distance of 30 Kms are treated as different stations, then the ORDAQA, Bangalore which is around 25 Kms away from ALISDA, Bangalore should also be considered as different station. We do not think there is any logic in such an argument. The stations which have been specified are , ' | OA.No.170/00229/2017/CAT/Bangalore Bench different locations. Besides Bangalore, in Hyderabad, Jabalpur, Kanpur, Calcutta and Lucknow there are more than one unit and all units located at one city/town have been taken as one station. The station should logically be City/town based and not. unit wise. Therefore, the list of stations of the DGAQA furnished in the Annexure to the policy appears to us justified as there is no merit in this contention of the applicant also.
17.As far as the transfer order dated 7.4.2017 whereby the applicant has been transferred to Hyderabad is concerned, the applicant had completed the Station tenure and is eligible for rotational transfer. He had also given the choice of postings which has been considered and he was posted to his preferred place i.e Hyderabad. He had earlier been transferred to Bangalore on compassionate ground. Therefore, he cannot cite the same ground to continue at Bangalore indefinitely. As submitted by the respondents, the . applicant has All India Transfer liability and thus cannot insist on continuing in the same place indefinitely. The Hon'ble Apex Court in Rajendra Singh & Ors. v. State of Uttar Pradesh & Ors [(2010) 1 SCC (L&S) 503] the Hon'ble Supreme Court held vide para-8 as follows:
8 A government servant has no vested right to. remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary..No.Government can function if the government servant insists that once appointed or posted.in a particular place or position, he should continue in such place or position as long as he desires (see State of U.P. v. Gobardhan Lal, SCC p.406, para 7).
18.In the case of Union of India & Ors v. S.L.Abbas [1993 INDLAW SC 11 06], the vide para-7 of its order, the Hon'ble Supreme Court held as follows:
7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated. by malafides or is made in violation of any statutory provisions, the court cannot interfere with it' While ' ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government. on. the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies. of administration. The guidelines say that as far as possible, husband and wife must be posted at the 10 OA.No,170/00229/2017/CAT/Bangalore Bench same place. The said guideline however does not confer upon the Government employee a legally enforceable right.
19.In Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey & Ors [ (2004) 12 SCC 299], the Hon'ble Apex Court held as follows:
4, Transfer which is an incidence of service is not to be interfered with by courts unless it is shown to be clearly arbitrary or visited by mala fide or infraction of any prescribed norms of principles governing the transfer (see Abani Kanta Ray v. State of Orissa). Unless the order of transfer is visited by mala fide or is made in violation of operative guidelines, the court. cannot ' interfere with it(see Union of India v. S.L.Abbas). Who should be transferred and posted where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any operative guidelines or rules the courts should not ordinarily interfere with it. In Union of India v. Janardhan Debanath it was observed as follows (SCC p.250, para 9) "No government servant or employee of a public undertaking Has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place 'to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts.or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was. highlighted by this Court in National Hydroelectric Power Corpn. Ltd. V. Shri Bhagwan.
20.In Shilpi Bose(Mrs) & Ors. v. State of Bihar & Ors [ (1991) 17 ATC 935], the ~~ Hon'ble Supreme Court vide para-4 of its order held as follows: -
5. _. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the _ transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the
- government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these. aspects in interfering with thé transfer orders.
21.Considering the entire facts and circumstances of the case and also keeping in view the various Court orders in the matter relating the transfer as 11 OA.No.170/00229/2017/CAT/Bangalore Bench mentioned earlier, we are clearly of the view that the present transfer order by which the applicant having completed his station tenure has been posted to his preferred place of posting cannot be stated as arbitrary or discriminatory.
Therefore, we do not find any justification for any interference in the said transfer order as far as the applicant is concerned. Therefore, we hold that the OA is devoid of any merit and is liable to be dismissed. Accordingly, the OA is ;
dismissed. No order as to costs.
cy. | . ae os 'MEMBER (A) | | | | MEMBER (J) /ps/ 12 OA.No.170/00229/2017/CAT/Bangalore Bench Annexures referred to by the applicant in the OA.170/00229/2017 Annexure-A1: Medical Certificates Annexure-A2: Compassionate transfer to Bangalore dtd.27.4. 2009 Annexure-A3: Transfer Policy dtd.5.10.2010 _Annexure-A4: Draft Policy No.3598/DGAQA/Adm-I dtd.23.11.2015 Annexure-A5: Letter dtd.10.05.2016 Annexure-Aé: Letter dtd.31.10.2016 -
Annexure-A7: Letter dtd.09.11.2016 _ Annexure-A8: Letter dtd.16.12.2016 Annexure-AQ: Impugned Transfer dtd.7.4.2017 Annexure-A10: Letter dtd.22.2.2017 Annexure-A11: SRO 10 Annexure-A12: Letter dtd.31.3.2017 Annexure-A13: Letter dtd.10.4.2017 Annexure-A 14: Maintenance and Welfare of Parents and Sr. Citizens Act Annexure-A15: Representation dtd.2.1.2017 Annexure-At6: Representation dtd.3.1.2017 Annexure-A17: Representation dtd.12.4.2017 Annexures with reply statement:
Annexure-R1: Order dtd. 25.4.2017 in OA. 1339/2017 passed by Principal Bench of the Tribunal Annexure-R2: The Gazette of India: August 25, 2007 Annexures with rejoinder:
Annexure-RJ1: RTP of DAQAS Officers dtd.6.12.2016 Annexure-RJ2: List of Group 'B' Officers due for transfer under RTP year 2017- 18
-Annexure-RJ3(i): RTP of Group 'B' Officers dtd.16.12.2016 Annexure-RJ3(ii): Strength increase: NGO dtd.31.5.2010 Annexure-RJ5: Details of DAQAS Officers up to level of Directors Annexure-RJ6: Order Sheet in OA.No.170/00229/2017 | Annexure-RJ7: List of Group 'B' Officers due for transfer under RTP year 2017-18 Annexure-RJ8: Posting/Transfer under RTP year 2017-18 Annexure-RJ9: RTP of DAQAS Officers Annexure-RJ10: Advance of TA/DA of Permanent Transfer Annexure-RJ11: Transfer Policy for Group 'B' Officers of ordnance factories
-Annexure-RJ12: Rotational Transfer 2017 dtd.13.2.2017 .
Annexure-RJ13: Transfer Staff dtd.24.3.2006 Annexure-RJ14: Request for deferment of transfer under RTP on Educational Ground Annexure-RJ15: Gradation List 'Annexure-RJ16: Posting and Transfers: officers: SSA Annexure-RJ17: Policy: RTP i/r/o DGAQA Officers FOR KOK